Overcoming the backlog of cases: Judicial reform

A British citizen, Will Pike was paralysed during the 2008 Taj Hotel blasts in 2008. Suing the hotel group for compensation, he wanted the trial to take place in London rather than in India. Accepting his contention, the London court allowed the matter, specifically stating that the trial in India could take some ‘twenty years’. This is a befitting example of the pendency in Indian judicial system and how it needs to be urgently addressed.

THE MAGNITUDE OF THE PROBLEM

The graphic below states the number of cases pending before the Courts in India. Currently, about 3.25 crore cases are pending in the Indian courts and Judges fear that this number might escalate to about 4 crore cases by the end of 2016. This problem gets escalated due to the crunch of Judges at all levels of Judiciary as seen in the graphic below.


 

Timely justice is an integral part of access of justice and this huge backlog of cases amounts to denial and derailment of justice. This article will look into the proposed reforms for addressing this systemic problem.

10 REFORMS FOR ADDRESSING JUDICIAL PENDENCY

The 245th Law Commission Report on “Arrears and Backlogs: Creating Additional Judicial (W)omanpower has recommended the following measures

1. Calculating Adequate Judge Strength through a more scientific analysis of data – In this context, the Commission has negated a simplistic method like Judge-Population ratio (Number of judges required per million people) in favour of a Rate of Disposal Method.

In the Rate of Disposal Method, one looks at the current rate at which judges dispose of cases. Then, given that the institutions and disposal rate remain the same, the Courts would need how many more additional judges to keep pace with the new filings in Court so that the newly instituted cases do not add to the existing backlog.

2. Judges to be appointed on a Priority basis: India currently has 1/5th of the number of judges it needs and thus, the Judges need to be appointed on a priority basis.

3. Increasing the age of retirement for Subordinate Court Judges to 62 years.

4. Creation of Special Courts for traffic/police challan cases: They constitute about 37.4% of the existing pendency before the subordinate courts.

5. Provision for staff and infrastructure

6. Periodic Needs Assessment by High Courts: Monitoring the rate of institution and disposal of cases and revising the adequate strength of Judges since a High Court is equipped with all the information relating to the subordinate courts in the State. The Malimath Committee had recommended setting up of Vigilance Cells in each district by the High Court to monitor the performance of subordinate judicial officers.

7. Uniform data collection and data management methods : to bring in greater transparency.

8. Need for a system-wide reform: The Commission has recommended the following:
● Greater encouragement to Alternative Dispute Resolution (ADR) and Lok Adalats <Can you tell us the difference among various types of ADRs, mediation, arbitration and conciliation? Answer in comments>
● Setting up non-mandatory time frames and performance benchmarks for resolution of different types of cases based on rational criteria.

OTHER RECOMMENDATIONS

9. Use of Technology : Has been recommended by the 230th Law Commission Report and the Malimath Committee Report to
(a) Club cases filed on similar points of law, which can be decided on the basis of a single judgment.
(b) Track old cases, which have become infructuous and dispose them off quickly
(c) Setting up E-Courts and ushering in E-filing. Has received a major boost under the e-Courts Integrated Mission Mode Project.

10. Creation of All-India Judicial Service: Provided for under Article 312 of the Indian Constitution. The idea has been mooted by various bodies including the First Judicial Pay Commission and accepted by the Supreme Court. Art 2012 proposal regarding creation of this service has not received responses from all States and this proposal continues to be hanging in the air <can you tell us the procedure of creation of new all India service? Answer in comments>.

CONCLUSION:

Many steps are currently being taken by the Government and the Courts to address this problem.

  • Monthly National Lok Adalats are carried out for expeditious disposal of claims.
  • In March 2016, the Monthly Lok Adalat disposed of about 1.5 lakh cases and settled claims worth Rs. 100 crores <Where can one appeal against the decision of Lok Adalats. Also tell us about the jurisdiction of Lok Adalats. Answer in comments>
  • In criminal cases, the setting-up of fast-track Courts and “plea bargaining” have further expedited matters <Can you tell us what’s plea bargaining? Answer in comments>
  • The e-courts project, aimed at providing better Court management and a database of all pending cases with easier filing of important documents is underway.
  • Moreover, the National Litigation Policy 2015 is awaiting ministerial approval and seeks to reverse the trend of Government being the biggest litigant <did you know one of the argument for rejecting NJAC was that govt was the biggest litigant, therefore can have no role in appointment of judges>.

However, in view of the burgeoning backlog and urgency of reducing backlog, the efforts need to be severely expedited.


P.S. This article is published with inputs from a CD user  Joyousjojo (name changed on request).

P.P.S. If you want to write explainers for CD, mail us your explainer at hello@civilsadily.com

Any doubts?


  1. Profile photo of Pranav Pathak Pranav Pathak

    Please put up question for this.
    Thanks

  2. Profile photo of Pranav Pathak Pranav Pathak

    Plea bargaining – an arrangement between prosecutor and defendant whereby the defendant pleads guilty to a lesser charge in exchange for a more lenient sentence or an agreement to drop other charges

  3. Profile photo of Pranav Pathak Pranav Pathak

    Lok Adalats were formed under the Legal Services Authorities Act which also provides for NALSA
    These settle disputes through concilliation and compromise
    Accepts cases pending in regular court under their jurisdiction
    • The Lok Adalat is presided over by a sitting or retired judicial officer as the chairman, with two other members, usually a lawyer and a social worker.
    • Main condition of the Lok Adalat is that both parties in dispute should agree for settlement.
    • There is no court fee.
    • The decision of the Lok Adalat is binding on the parties to the dispute and its order is capable of execution through legal process.
    • No appeal lies against the order of the Lok Adalat.

[op-ed snap] Guilty until…

Context:

  1. Delhi court’s acquittal of two persons accused of involvement in the 2005 serial blasts in the city
  2. It brought an end to their long incarceration
  3. However, it brings to light another instance of unconscionable miscarriage of justice in this country

Accuse is acquitted:

  1. Additional Sessions Judge Reetesh Singh acquitted the two men — Mohammad Hussain Fazli and Mohammad Rafiq Shah — of all charges
  2. The court found no evidence to link the third accused, Tariq Ahmed Dar, to the blasts, though it convicted him for being a member of a terrorist organization
  3. At one level, the judgment is a reassuring affirmation of the independence at the lower rungs of the Indian judiciary

Background:

  1. The explosions, in a bazaar outside the New Delhi railway station, in a bus, and in the Sarojini Nagar market, came just before Deepavali
  2. It killed 67 and injured more than 200 people

False Trails:

  1. It must invite a response from the state to inquire into and address the processes that keep investigating agencies and prosecutors so determinedly on false trails
  2. The frightening monotony with which Indian agencies have been failing to professionally investigate terrorism cases, and are accused of framing innocents, should jolt the system
  3. The court said the prosecution had “miserably failed” to prove its case regarding who carried out the October 29, 2005 bomb blasts
  4. It noted that the prosecution failed to establish a link between Dar and the other two Kashmiris accused
  5. This is not the first time that investigation into a terror case has fallen flat in a court of law; nor is it the only instance of the Indian security agencies being accused of framing innocents
  6. The judgment is a telling commentary on India’s faulty counter-terror posture, one that demands a holistic overhaul

Not the first time:

  1. There is a long list of terror attacks in which the security establishment failed to carry out a scientific probe and ended up framing innocent persons
  2. The Malegaon blast of 2006, the attack on Mecca Masjid in Hyderabad in 2007, the Samjhauta Express attack of 2007 have all seen the investigating agencies flailing to find the guilty
  3. Such incompetence has grave implications for India’s preparedness to avert terrorist strikes
  4. It is from credible clues gathered during investigations into an attack that agencies pick up the trail to active terror groups, sleeper cells, and so on

Lives of innocent people ruined:

  1. Moreover, this incompetence often swallows the lives of innocent persons
  2. In this case, Mohammad Rafiq Shah was just another college student in Srinagar when he was detained in 2005, while Mohammad Hussain Fazli was a struggling carpet-maker
  3. It is difficult to imagine what could be done to compensate them for their long, unjust incarceration
  4. A reform of the investigation processes should, however, frame the state’s response to the verdict.

Note4Students:

It may not be a direct question, but it is important to know about this prevailing issue of (in)justice; especially when there have been questions raised on effectiveness of criminal justice system in India.

[op-ed snap] Be the solution

Law Minister’s direction:

  1. Union Law Minister Ravi Shankar Prasad’s missive to all high court chief justices to “review” cases of undertrials who have been incarcerated for long and to “take suo motu action for their release”
  2. A plethora of data highlights the seriousness of the problem

Statistics:

  1. National Crime Records Bureau (NCRB) data shows that of the over 2.82 lakh people in jail in 2015, about 67% were undertrials
  2. More than 65% of the undertrials spend three months to five years in jail before getting bail

Past records:

  1. Calls to rectify matters have been made before
  2. The issue of undertrials found mention during the imbroglio over the appointment of judges last year
  3. But very often the plight of those languishing in jails entered the argument only to make a case for the urgency of the appointment of judges

The delay:

  1. An overburdened judiciary is a major reason for the delay in justice
  2. The understaffed judiciary compounds the problem
  3. Section 167 of the Code of Criminal Procedures mandates that judges can extend a detainee’s custody for a period of 15 days at a time
  4. For that to happen, the detainees have to be produced regularly before the courts
  5. This rarely happens; proceedings don’t take place in time and the undertrials are shuttled from court to court
  6. While issuing his directive to the judges, the law minister asked all “the stakeholders — the government and judiciary — to take collective responsibility” to ensure that that the “institutional mechanism” works “seamlessly to ensure access to justice for the undertrials”
  7. Other shortcomings in the criminal justice system too require urgent redressal
  8. Police and prison officials, for example, often fail to fulfill their roles, leading to long delays in trials

Equality in court corridors:

  1. Most of the undertrials come from disadvantaged social groups — several surveys have shown that 50-55% of the undertrials are from minority communities and Dalits
  2. NCRB data shows that 70% of them are illiterate
  3. Lack of resources constricts their ability to seek out lawyers and hostile police and prison authorities are rarely of help
  4. Despite a 1980 Supreme Court ruling that Article 21 of the Constitution entitles prisoners to a fair and speedy trial as part of their fundamental right to life and liberty

Note4Students:

The op-ed is important for understanding our judicial system. A direct question may not be asked but it can be a point on judicial reforms.

Nod of judge not needed for transfer

  1. Context: Justice C.S. Karnan was issued contempt notice for allegedly penning scurrilous communications against High Court and Supreme Court judges
  2. Background: In February 2016, as a Madras High Court judge, Justice Karnan stayed his own transfer order by Supreme Court
  3. He questioned the Chief Justice of India’s comment that the transfer was recommended for reasons of “better administration”
  4. He had later expressed regret and was shifted out after the President signed the warrant and set a deadline for him to join the Calcutta High Court
  5. Precedents: A plethora of Supreme Court decisions deals with the procedure and philosophy behind judges’ transfer policy
  6. These Constitution Bench decisions weigh, among other questions, whether prior consent of a High Court judge is necessary before transferring him or her from one High Court to another
  7. Article 222 (1) of the Constitution deals with the transfer of a High Court judge to another High Court
  8. It says that the “President may, after consultation with the Chief Justice of India, transfer a judge from one High Court to any other High Court”
  9. The Supreme Court, in the Second Judges Case of 1993, had held in a majority judgment that consent of the judge was not necessary for transferring him out, provided it was done with the full and effective consultation with the Chief Justice of India
  10. The transfer should be done in public interest and not as a punishment
  11. The 1993 judgment referred to the 1977 decision of the Supreme Court in Union of India v/s Sankal Chand Sheth case and S.P. Gupta verdict of 1982, both of which had held that there was no requirement of prior consent of the judge concerned before his transfer under Article 222
  12. 1993: “The power of transfer can be exercised only in public interest, that is, for promoting better administration of justice throughout the country,” the Supreme Court had held in 1993
  13. “Any transfer in accordance with the recommendations of the Chief Justice of India cannot be treated as punitive or an erosion in the independence of the judiciary”
  14. The 1993 judgment had held that there should be no reason for a judge to even think that his transfer was punitive when it is made in accordance with the recommendation of the Chief Justice of India
  15. Ambedkar: In the Sankal Chand Sheth case, the Supreme Court quotes Dr. B.R. Ambedkar on judges’ transfer in the Constituent Assembly
  16. Dr. Ambedkar had said that a judge may be shifted from one High Court to another to strengthen the High Court by importing better talents which may not be locally available

Note4students:

Be aware of constitutional provisions and the present position on the issue as put forward by SC judgments. Keep track of the issue as it develops. SC judgments are very important from mains point of view.

In a first, SC issues contempt notice against HC Judge Karnan

  1. An unprecedented move: A 7-judge Bench of the seniormost judges of the SC issued contempt of court notice against sitting Calcutta HC judge C.S. Karnan
  2. Why? For impeding justice administration and bringing discredit to the judicial institution of the country by writing scurrilous letters about sitting and retired judges
  3. Attorney-General Mukul Rohatgi argued that it was time the apex court stopped tolerating the onslaught on the judicial institution by one of its own judges
  4. He said Justice Karnan, through his letters and conduct dating back to his years as a judge in the Madras HC, was making a “completely calculated” effort to “destroy” his parent institution
  5. If the SC was stern with the litigant, it should be sterner with one of its own who tried to harm the institution from within
  6. The SC as the apex judiciary is empowered under Articles 129 read with its extraordinary powers under Article 142 (2) to punish a member of the HC and subordinate judiciary for contempt
  7. Even a HC judge who had repeatedly made damaging remarks about his superiors and colleagues
  8. According to him the power of the SC to punish for contempt was not confined to the Contempt of Courts Act
  9. Article 129, he said, clothed the SC with the power to punish for contempt of itself. Article 142 (2) provided the court with the power to “make any order” for the “punishment of any contempt of itself”
  10. Court of Record: The A-G quoted the 1991 SC judgment in Delhi Judicial Service Association versus State of Gujarat
  11. It said the Constitution designed the SC as a Court of Record and “Article 129 thereof recognises the existing inherent power of a Court of Record in its full plenitude, including the power to punish for its own contempt and the contempt of its subordinate.”
  12. On Jan 2, 2017, the SC reiterated the point in its judgment in the Mid-Day staffers’ contempt case (Vitusah Oberoi versus Court on its own motion) when it observed that “one of the recognised attributes of a court of record is the power to punish for its contempt.”

Note4students:

Important issue and needs to be followed as it develops. There are many judgments and articles here, if you did not understand them in the first reading then read the news again! Refer to the articles below to refresh your memory.

Back2basics:

Article 129 – Supreme Court to be a court of record

The Supreme Court shall be a court of record and shall have all the powers of such a court including the power to punish for contempt of itself

Article 142(2) – Enforcement of decrees and orders of Supreme Court and unless as to discovery, etc

Subject to the provisions of any law made in this behalf by Parliament, the Supreme Court shall, as respects the whole of the territory of India, have all and every power to make any order for the purpose of securing the attendance of any person, the discovery or production of any documents, or the investigation or punishment of any contempt of itself

Retired judges to wield the gavel again II

  1. It will be used for enhancing the strength of judges to deal with the backlog of cases for a period of two years or the age of sixty five years
  2. It will be in effect until a five plus zero pendency is achieved
  3. ‘Five plus zero’ is an initiative by which cases pending over five years are taken up on priority basis and their numbers are brought down to zero
  4. At the Conference it was resolved that all HCs shall assign top-most priority for disposal of cases which are pending for more than five years

Retired judges to wield the gavel again I

  1. Event: The Union government has agreed to a resolution passed by the judiciary in the Chief Justices and Chief Ministers Annual Conference in 2016
  2. What: To use the services of retired HC judges with proven integrity and track record to tackle pendency of cases
  3. Constitution: The provision to use the services of retired judges is open to the Chief Justices of HCs under Article 224A of the Constitution
  4. It also requires the previous consent of the President as an extraordinary measure to tide over case pile-ups

No abnormal increase in High Court vacancies: Centre

  1. What: The government has said that it has increased the sanctioned strength of High Court judges from 906 (in 2014) to 1,079 (in 2016)
  2. According to the govt there has been no abnormal increase in number of vacacncies
  3. Why: In response to the SC saying that vacancies are not being filled

[op-ed snap] Time to decongest our prisons

  1. Theme: Overcrowding of prisons in India.
  2. Background: The prisons in Delhi and nine States have an occupancy rate of 150 per cent of their capacity. The average occupancy in all jails in the country was 117.4 per cent, as of December 31, 2014.
  3. Issues: Cramped conditions in prison militate against the prisoner’s right to good health and dignity.
  4. Further, an excessive prison population creates problems of hygiene, sanitation, management and discipline.
  5. Of equal concern are the available staff strength and the level of training they receive.
  6. Another point of concern is that a little over two-thirds of India’s prisoners are undertrials. Poverty remains the main reason for this, as most prisoners are unable to execute bail bonds or provide sureties.
  7. Recent developments: In February and May this year, the Supreme Court passed a series of interim orders to the States on measures to decongest prisons.
  8. But, no State or Union Territory has prepared a plan of action yet.
  9. On the issue of large proportion of undertrials in jails, efforts are being made to invoke Section 436A of the Code of Criminal Procedure and release those undertrials on personal bonds, who have completed half of the maximum jail term specified for their offences. But much more needs to be done.

SC directions for managing jails

  1. Context: SC judgment on a suo motu PIL on conditions of inmates in Indian prisons
  2. SC: Directed the Ministry of Women and Child Development to get the manual ready by November 30 and present it in court
  3. It also ordered the Ministry of Home Affairs to receive and collate plans of action for de-congesting jails from the various States and Union Territories in the next six months
  4. Moreover, it directed the Govt to prepare a viable Plan of Action within the next six months and hand it over to the apex court by March 31, 2017

No action taken to improve condition of jails

  1. Context: SC judgment on a suo motu PIL on conditions of inmates in Indian prisons
  2. The court found that authorities have defied repeated orders of SC- the latest ones being on February 7 and May 5 of this year- to draw a viable plan of action to de-congest jails
  3. Instead, prison authorities have banked on ad hoc proposals like the construction of additional barracks or jails, and these proposals have no time limits for implementation
  4. Also, the Ministry of Women and Child Development is yet to frame a Manual for Juveniles in Custody under the recently amended Juvenile Justice (Care and Protection of Children) Act, 2015

SC says jails are overcrowded by 150 %, laments plight of inmates

“Fundamental rights and human rights of people, however they may be placed, cannot be ignored only because of their adverse circumstances, says SC”

  1. Context: SC judgment on a suo motu PIL on conditions of inmates in Indian prisons
  2. SC: It is not only tragic but also pathetic to find that prisons in the national capital, along with half a dozen States across the country, are overcrowded by over 150%
  3. Blamed Delhi for paying little or no attention to the fundamental rights of under trials and convicts,

Relieve judiciary of avoidable burden: CJI

  1. CJI Thakur: Urged the Law Ministry to devise a mechanism to relieve the judicial system of the avoidable burden
  2. Burden: Arising out of sheer apathy, indifference or incapacity of the Govt and its departments to take certain decisions
  3. Panel: Also asked the government to set up a panel, comprising former judges
  4. Why? to decide whether or not to fight a case against any citizen when the issue could be resolved outside court
  5. The CJI referred to certain unnecessary cases which could be screened before reaching court and solved at the administrative level itself

Aims and objectives of Access to Justice Project

  1. Aims: Supporting justice delivery systems in improving their capacities in order to serve the people, in empowering ordinary people to demand improved services & to access their rights and entitlements
  2. Also, encouraging innovative activities to enhance legal awareness of vulnerable populations, and their ability to seek redress
  3. Objectives: To address the legal needs of the marginalised and vulnerable sections of society, particularly women, children, and SC/ST communities, who do not have the requisite means to ensure that their rights are guaranteed

What is Access to Justice project?

  1. It is being implemented in the eight North-Eastern States, and Jammu and Kashmir, at a total cost of Rs.30 crore for five years (2012-17)
  2. The Department of Justice has been implementing Access to Justice for Marginalised People with the UNDP’s support
  3. First phase: (2009-2012) focused on both the demand as well as supply side of justice, and has reached out to two million people, apart from training 7,000 paralegals and young lawyers

State of Indian Judiciary: Rising pendency of cases and workload of judges

  1. Between 25 million and 30 million cases are estimated to be pending across the Supreme Court, 24 high courts and the subordinate courts
  2. The economic cost of the delay is pegged at 0.5% of GDP
  3. Reason for pendency: Growing number of vacancies in judicial positions
  4. Background: The Supreme Court had earlier expressed displeasure at the Centre for non-execution of the collegium’s decision to transfer and appoint chief justices and judges in high courts

Can filing of routine appeals not stop, SC asks law panel- II

  1. Bypassing HC: Also to consider the desirability of laws that allow parties, including the government, to file appeals against tribunal orders in the Supreme Court bypassing the High Courts
  2. Action: Ordered the Centre to file an Action Taken Report on the Law Commission’s recommendations & also a three-judge Bench would hear the Centre in November 2017
  3. Context: The judgment follows Chief Justice of India T.S. Thakur’s emotional appeal in the presence of Prime Minister Narendra Modi that the work burden of judges has become humanly unbearable

Can filing of routine appeals not stop, SC asks law panel- I

  1. SC: ‘No other Supreme Court presents such an undignified sight’- SC quoted in a judgment
  2. Why? To describe its chagrin at its crowded courtrooms and corridors besieged by private litigants and cash-rich companies who file routine appeals, thwarting SC’s objective to decide cases of national interest
  3. SC: The Supreme Court of India must cease to be a mere court of appeal to litigants and a daily mentor of the Government
  4. Directed the Law Commission of India to file a report within a year on whether it is permissible to stop the filing of all appeals which are not of national and public importance
  5. Context: The judgment follows Chief Justice of India T.S. Thakur’s emotional appeal in the presence of Prime Minister Narendra Modi that the work burden of judges has become humanly unbearable

Lower courts settled 21,000 pending cases last month

  1. Context: The latest figures collated by the National Judicial Data Grid
  2. Clearing: Out of the over 21 lakh cases pending for the past 10 years across India, the subordinate judiciary settled nearly 21,000 of them last month
  3. New cases: But even as the judiciary went about clearing the backlog, 5,77,834 fresh cases were filed across subordinate courts in April
  4. Nature of cases: Out of the 20,835 cases settled by the lower judiciary in April, 13,645 were criminal in nature and 7,190 civil

Most death row convicts first-time offenders

  1. Context: Death Penalty India Report
  2. Findings: Most death row inmates in India are poor, uneducated and first-time offenders
  3. A total of 241 out of the 385 death row inmates in India are first-time offenders
  4. Around 60% of the prisoners did not complete secondary education and nearly 75% belonged to economically vulnerable sections
  5. Education levels affect the extent to which the death row prisoners are able to understand details of the case filed against them
  6. Lack of education results in alienation from the system

Supreme Court is disposing pending cases at a faster rate

  1. Context: Data released by the Ministry of Law and Justice
  2. Numbers: In 2015, the top court disposed 47,424 cases compared to 45,042 in 2014 and 40,189 in 2013
  3. Measures: Regular hearings by 5 & 3-judge benches of SC being scheduled every Monday and Friday from 2pm to 4pm from 11 January onwards
  4. These are a part of CJI Thakur’s plan to reduce backlog of cases

SC refuses to disclose data on pending verdicts

  1. Context: Bringing judiciary under the ambit of RTI Act
  2. The News: The SC dismissed a plea to maintain the data on its pending judgments and make the information public under the RTI Act
  3. Background: Earlier, Central Information Commission gave a decision that SC shall disclose the number of pending or reserved judgments
  4. The Commission’s decision was upheld by a single judge of the Delhi HC
  5. Criticism: In 2001, SC itself ruled that the confidence of litigants would be shaken if judgments were kept pending for years


:( We are working on most probable questions. Do check back this section.







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